IN THE HIGH COURT OF DELHI AT NEW DELHI (CIVIL WRIT JURISDICTION) Civil W.P No.

_____ of 2011 (PUBLIC INTEREST LITIGATION) IN THE MATTER OF:Indian Social Action Forum (INSAF) PETITIONER VERSUS Union of India RESPONDENT

PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER: AAGNEY SAIL NEW DELHI DATED: August 5th, 2011

IN THE HIGH COURT OF DELHI AT NEW DELHI (CIVIL WRIT JURISDICTION) Civil W.P No. _____ of 2011 (PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:Indian Social Action Forum (INSAF) VERSUS Union of India RESPONDENT PETITIONER

INDEX SR. NO. 1. 2. 3. 4. 5. 6. NOTICE OF MOTION. URGENT APPLICATION MEMO OF PARTIES SYNOPSIS AND LIST OF DATES WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION WITH AFFIDAVIT ANNEXURE P1(colly): Copy of Memorandum of Association of the Petitioner, certificate of registration as well as letter dated 18.2.2008 by the Ministry of Home Affairs, Government under of India regarding Contribution 32-65 registration 7. Foreign 22-31 A B C D-K 1-22 PARTICULARS PAGE NO.

(Regulations) Act, 1976. ANNEXURE P2: Copy of the Foreign Contribution (Regulation) Bill, 2006 [Bill No. CXII of 2006] as introduced in the Rajya Sabha on 18.12.2006. 8. ANNEXURE P3: Copy of the 134th Report of the Committee on 66-89

Home 9.

Affairs

on

the

Foreign

Contribution 90-102

(Regulation) Bill, 2006. ANNEXURE P4: Copy of the National Policy on Voluntary Sector, 2007 10. ANNEXURE P5: Gazette copy of the Foreign Contribution 123-144 the Foreign Contribution 145 (Regulation) Act, 2010. 11. ANNEXURE P6: Gazette copy of (Regulation) Rules, 2011. 12. VAKALATNAMA 103-122

Through (Aagney Sail) Advocate for the Petitioner #102, New Lawyers Chambers, M.C.Setalvad Block, Supreme Court of India, Bhagwan Das Road, New Delhi - 110001

IN THE HIGH COURT OF DELHI AT NEW DELHI (CIVIL WRIT JURISDICTION) Civil W.P No. _____ of 2011 (PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:Indian Social Action Forum (INSAF) VERSUS Union of India RESPONDENT PETITIONER

NOTICEOFMOTION
To, The Standing Counsel, Union of India, Chamber Nos. 449-450, Delhi High Court. Please take note that the above noted matter will be listed on 10/08/2011 before the Honble High Court of Delhi. It is, therefore, requested to you to please enter your appearance on the said date.

PETITIONER Through

Aagney Sail Advocate for the Petitioner #102, New Lawyers Chambers, M.C.Setalvad Block, Supreme Court of India, Bhagwan Das Road, New Delhi - 110001

IN THE HIGH COURT OF DELHI AT NEW DELHI (CIVIL WRIT JURISDICTION) Civil W.P No. _____ of 2011 (PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:Indian Social Action Forum (INSAF) VERSUS Union of India URGENT APPLICATION
To, THE REGISTRAR, OF THE HIGH COURT OF DELHI, AT NEW DELHI. Sir, Kindly treat the accompanying Writ as an urgent one as per the Delhi High Court Rules. The ground of urgency is that the Foreign Contribution (Regulation) Act, 2010 and its Rules, 2011 are challenged as being unconstitutional and violative of the fundamental rights. The said Act and Rules are in force. It is most humbly prayed that an urgent hearing be given. Through

PETITIONER

RESPONDENT

Through Aagney Sail Advocate for the Petitioner #102, New Lawyers Chambers, M.C.Setalvad Block, Supreme Court of India, Bhagwan Das Road, New Delhi - 110001

IN THE HIGH COURT OF DELHI AT NEW DELHI (CIVIL WRIT JURISDICTION) Civil W.P No. _____ of 2011 (PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:Indian Social Action Forum (INSAF) VERSUS Union of India MEMO OF PARTIES RESPONDENT PETITIONER

Indian Social Action Forum (INSAF), Through its General Secretary, A-124/6, Katwaria Sarai, New Delhi 110016 Versus The Union of India, Through its Secretary, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi - 110001 Respondent Petitioner

SYNOPSIS & LIST OF DATES This Writ Petition under Article 226 of the Constitution has been filed challenging constitutional validity of Section 5(1) & 5(4) of the Foreign Contribution (Regulation) Act, 2010 (hereafter referred to as the 2010 Act) and Rule 3(i), 3(v) & 3(vi) of the Foreign Contribution (Regulation) Rules, 2011 (hereinafter referred to as the Rules of 2011) by which the Central Government has been given unchecked and unbridled powers to categorize virtually any organization as organization of political nature, not being a political party and thereby deny acceptance of Foreign Contribution without prior permission of the Central Government. The petitioner submits that the said provisions in the 2010 Act and the Rules of 2011 are violative of Article 14, 19(1)(a), 19(1)(c) & 21 of the Constitution. LIST OF DATES 5th May, 2004 The Petitioner-INSAF is registered under the Societies Registration Act, 1860 on 5 May 2004. Indian Social Action Forum (INSAF) is a forum of peoples movements, NGOs, human rights groups, etc. all over India, combating involved in resisting and globalization, communalism

defending democracy. INSAF believes that the fundamental rights enshrined in the Constitution of India need to be safeguarded against blatant and rampant violations by the State and private corporations. against land INSAF grab has by actively campaigned ecological nuclear corporations,

disaster by mining companies, water privatization, genetically power, modified food, policies hazardous of anti-people international

financial institutions like World Bank and Asian Development Bank, repeal of draconian anti-

democratic legislations like, Armed Forces Special Powers Act and Unlawful Activities (Prevention) Act. INSAF firmly believes in a secular and peaceful social order and opposes communalism and the targeted attacks on the lives and rights of people regularly including fact religious findings, minorities. peoples INSAF organizes campaigns, workshops, tribunals,

conventions,

solidarity actions for peoples movements and educational-publications. INSAF is also actively involved in international fora like Jubilee South, NGO Forum on ADB, Asia Europe Peoples Forum, Barcelona Consensus, etc. The public Petitioner-INSAF hearings 2010 and in has organized several the

conventions New Delhi,

like

convention on repression of peoples movements in December, Independent Peoples tribunal on development, displacement and repression in Jharkhand during February, 2009. INSAF has several publications in English and Hindi to its credit like: 1. 2. Peace Counts exhibition Report of the Independent Peoples tribunal on 3. 4. 5. development, displacement and repression in Jharkhand Water laws in India, Pakistan, Bangladesh and Nepal Hoodwinked in the hothouse: false solutions on climate change UID: tacking profiling and surveillance of citizens

6. 7. 8. 9. 23.05.2005 The

Seedlings Agrofuels Seedlings Indian Agrofuels Seedlings Climate Crisis Panchayati Raj (in Hindi only) draft Bill named Foreign Contribution

Management and Control) Bill, 2005, as was presented to the Cabinet, has been uploaded on the Ministry of Home Affairs website for seeking comments/views the Group of of different by stakeholders the Cabinet by on 31.07.2005. The said Bill of 2005 was referred to Ministers 23.06.2005. 24.06.2005 & 25.06.2005 The Ministry of Home Affairs organized a national seminar on Foreign Contribution (Regulation) Act, 1976 wherein suggestions of various stakeholders were considered. 18.12.2006 The Foreign Contribution (Regulation) Bill, 2006 [Bill No. CXII of 2006] (hereafter referred to as the 2006 Bill) was introduced in the Rajya Sabha by Shri S. Reghupathy, Minister of State for Home Affairs. 22.12.2006 In pursuance of the rules relating to the

Department-related

Parliamentary

Standing

Committees, the Chairman, Rajya Sabha, referred the 2006 Bill to the Committee on Home Affairs for examination and report within three months. 09.02.2007 The Committee on Home Affairs (hereafter

referred to as the Committee) issued a press

communiqu

on

the

2006

Bill

inviting

views/suggestions. 12.06.2007 The Committee in its meeting heard the

presentation of the Home Secretary, Government of India on the 2006 Bill. 16.07.2007 17.07.2007 & 03.10.2007 The Committee in its sittings heard the views of Dr Bimal Jalan, Member of Parliament, Rajya Sabha and ex-Governor, Reserve Bank of India (RBI) and representatives of the RBI, State Bank of India, ICICI Bank, HDFC Bank, Catholic Bishops Conference of India, National Council of Churches in India, National Council of YMCA of India, Representatives of Voluntary Action Network India and Institute of Chartered Accountants of India. Dr. Bimal Jalan, Member of Parliament and exGovernor of RBI submitted before the Committee that making the provisions in the 2006 Bill stringent may result in stifling the legitimate activities of the NGOs more than their illegitimate activities. Six major national Political Parties submitted that India is a democratic republic. So everyone has the right to be part of the political process. Prohibition of organization of political nature from receiving foreign contribution seems to be inconsistent with the rights guaranteed by the Constitution of India. 06.11.2007 The Committee in its sittings heard

& 09.01.2008

representatives of Planning Commission on the compatibility of the 2006 Bill vis--vis National Policy on Voluntary Sector, a policy document of Voluntary Sector Cell, Planning Commission, Government of India. The Committee also heard Heads of the four expert groups who had worked on the draft policy. The National Policy on Voluntary Sector, 2007 was considered and approved by the Cabinet on 17.05.2007 and it was notified in the Gazette of India on 31.07.2007. The National Policy on Voluntary Sector, 2007 states that, Para 4.1: The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability. Para 4.7: International funding of voluntary organizations plays a small, but significant part in supporting such organizations and their work in the country. An organization seeking foreign funding must be registered under the Foreign Contribution (Regulation) Act. This law prescribes stringent screening norms that often restrict the ability of VOs to avail foreign funds. When approved, there are problems like funds must be held in a single bank account, thus presenting enormous difficulties to VOs working at different locations. The Government will review the FCRA and simplify its provisions that apply to VOs, from time to time, in consultation with the joint consultative group to be set up by the concerned Ministry (as suggested under para 5.4).

18.02.2008

The Petitioner received registration under Foreign Contributions World HIVOS (Regulation) Act, 1976. INSAF receives foreign funds support from Bread for the (Germany), (Netherlands), SWISSAID Grassroots (Switzerland), International

(USA) and Global Greengrants Fund (USA). 15.05.2008 & 16.05.2008 04.07.2008 The Committee took up clause-by-clause consideration of the 2006 Bill. The Committee considered the draft Report in its sitting on 04.07.2008 and adopted the same. 21.10.2008 The Committees 134th Report on the Foreign Contribution (Regulation) Bill, 2006 is presented to the Rajya Sabha and laid on the table of Lok Sabha. 19.08.2010 The Foreign Contribution (Regulation) Bill, 2010 [Bill No. CXII-C of 2006] (hereafter referred to as the 2010 Bill) is passed by the Rajya Sabha. 27.08.2010 The 2010 Bill as passed by Rajya Sabha is debated in the Lok Sabha and passed. 26.09.2010 The 2010 Bill receives the assent of the President of India. 27.09.2010 The Foreign Contribution (Regulation) Act, 2010 (Act No. 42 of 2010) (hereafter referred to as the 2010 Act) is notified in the Gazette of India Extraordinary Part II Section I.

29.04.2011

The Central Government by Gazette Notification S.O. 909(E) appoints 01.05.2011 as the date on which the provisions of the 2010 Act shall come into force.

29.04.2011

The Central Government in exercise of the powers conferred by Section 48 of the 2010 Act publishes the Foreign Contribution Rules of (Regulation) 2011) vide Rules, Gazette 2011(hereafter

notification vide G.S.R. 349(E). The said rules are to come into force on the same day as the 2010 Act. Rule 3 is relevant for the purpose of this writ petition, which reads as follows:. 3. Guidelines for declaration of an organization to be of a political nature, not being a political party.- The central Government may specify any organization as organization of political nature on one or more of the following grounds: (i) organization or bylaws: (ii) any Trade Union whose objectives include activities for promoting political goals: (iii) any voluntary action group with objectives of a political nature or which participates in political activities; (iv) front or mass organizations like Students Unions, Workers Unions, Youth Forums and Womens wing of a political party; (v) organization of farmers, workers, students, youth based on caste, community, religion, language or otherwise, which is not directly having avowed political objectives in its Memorandum of Association

aligned to any political party, but whose objectives, as stated in the Memorandum of Association or activities gathered through other material evidence, include steps towards advancement of political interests of such groups; (vi) any organization, by whatever name called, which habitually engages itself in or employs common methods of political action like bandh or hartal, rasta roko, rail roko or jail bharo in support of public causes. 01.05.2011 The Foreign Contribution (Regulation) Act, 2010 & the Foreign Contribution (Regulation) Rules, 2011 come into force. Consequently, the earlier act, viz., the Foreign Contribution (Regulation) Act, 1976 is repealed. 05.08.2011 The present Writ Petition filed under Article 226 of the Constitution challenging the constitutional validity and ultra-vires nature of Section 5(1) & 5(4) of the 2010 Act and Rules 3 (i), 3(v) and 3(vi) of the Rules of 2011.

IN THE HIGH COURT OF DELHI AT NEW DELHI (CIVIL WRIT JURISDICTION) Civil W.P No. _____ of 2011 (PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:

Indian Social Action Forum (INSAF), Through its General Secretary, A-124/6, Katwaria Sarai, New Delhi 110016 Versus The Union of India, Through its Secretary, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi - 110001 Respondent Petitioner

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION To, The Honble Chief Justice and his Honble Companion Justices of the High Court of Delhi at New Delhi The humble Petition of the above named petitioner most respectfully sheweth: 1. This Writ Petition under Article 226 of the Constitution has been filed challenging constitutional validity of Section 5(1) & 5(4) of the Foreign Contribution (Regulation) Act, 2010

(hereafter referred to as 2010 Act) and Rules 3(i), 3(v) & 3(vi) of Foreign Contribution (Regulation) Rules, 2011 (hereinafter referred to as the Rules of 2011) by which the Central Government has been given unchecked and unbridled powers to categorize virtually any organization as organization of political nature, not being a political party and thereby deny acceptance of Foreign Contribution without prior permission of the Central Government. The petitioner submits that the said provisions in the Act of 2010 and the Rules of 2011 are violative of Article 14, 19(1)(a), 19(1)(c) & 21 of the Constitution of India. 2. That the facts relevant for the purpose of this writ petition are as follows: 2.1 Indian Social Action Forum (INSAF) is a forum of peoples movements, NGOs, human rights groups, etc. all over India, involved in resisting globalization, combating communalism and defending democracy. INSAF believes that the fundamental rights enshrined in the Constitution of India need to be safeguarded against blatant and rampant violations by the State and private corporations. INSAF has actively campaigned against land grab by corporations, ecological power, disaster by mining of companies, international water financial privatization, genetically modified food, hazardous nuclear anti-people policies institutions like World Bank and Asian Development Bank, repeal of draconian anti-democratic legislations like, Armed Forces Special Powers Act and Unlawful Activities (Prevention) Act. INSAF firmly believes in a secular and peaceful social order and opposes communalism and the targeted attacks on the lives and rights of people including religious minorities. INSAF regularly organizes campaigns, workshops, conventions, fact findings, peoples tribunals,

solidarity actions for peoples movements and educationalpublications. INSAF is also actively involved in international fora like Jubilee South, NGO Forum on ADB, Asia Europe Peoples Forum, Barcelona Consensus, etc. 2.2 The Petitioner-INSAF has organized several public hearings and conventions like the convention on repression of peoples movements in December, 2010 in New Delhi, Independent 2009. INSAF has several publications in English and Hindi to its credit like: 1. Peace Counts exhibition 2. Report of the Independent Peoples tribunal on development, Jharkhand 3. Water laws in India, Pakistan, Bangladesh and Nepal 4. Hoodwinked in the hothouse: false solutions on climate change 5. UID: tacking profiling and surveillance of citizens 6. Seedlings Agrofuels 7. Seedlings Indian Agrofuels 8. Seedlings Climate Crisis 9. Panchayati Raj (in Hindi only) The Petitioner shall submit before this Honble Court several other publication by Petitioner INSAF and details of its activities. 2.3 The Petitioner-INSAF is registered under the Societies Registration Act (XXI) of 1860 on 5 May 2004 and under Foreign Contributions (Regulation) Act, 1976 on 18 February 2008. INSAF receives foreign funds support from displacement and repression in Peoples Tribunal on Development, Displacement and repression in Jharkhand during February,

Bread for the World (Germany), SWISSAID (Switzerland), HIVOS (Netherlands), Grassroots International (USA) and Global Greengrants Fund (USA). The Petitioner shall produce, if required, funding it received from these

organizations for its different programmes. A true and correct copy of the Memorandum of Association of the Petitioner, certificate of registration as well as letter dated 18.2.2008 by the Ministry of Home Affairs, Government of India regarding registration under Foreign Contribution (Regulations) Act, 1976 is hereto marked and annexed as ANNEXURE P-1 (Colly). 2. That the Ministry of Home Affairs drafted the Foreign Contribution (Management and Control) Bill, 2005 and invited public comments. However, after this Bill of 2005 was referred to the Group of Ministers by the Cabinet on 23.06.2005 it was allowed to lapse. Thereafter a second Bill was drafted by the Ministry of Home Affairs known as the Foreign Contribution (Regulation) Bill, 2006 (hereafter referred to as Bill of 2006). This Bill of 2006 was introduced in the Rajya Sabha on 18.12.2006 and was referred to the Committee on Home Affairs. A true and correct copy of the said Bill of 2006 is hereto marked and annexed as ANNEXURE P2. 3. That the Committee on Home Affairs (hereafter referred to as Committee) after inviting suggestions from the public on the Bill of 2006 heard representations made by various stake holders including Planning Commission, Ministry of Home Affairs, Reserve Bank of India, banks, civil society, national Political parties, Institute of Chartered Accountants of India etc. Dr. Bimal Jalan, Member of Parliament and ex-Governor of RBI submitted before the Committee that,

5.1 Suggestions of Dr. Bimal Jalan: Dr. Jalan appeared before the Committee on 16th July, 2007 and expressed his viewpoints on the Bill. He stated that the NGOs, particularly small organizations engaged in social, health and educational work for disadvantaged sections of the society were highly concerned about the implications of this Bill. His main concern was about cumbersome and bureaucratic administrative provisions in the Bill and requested for review of this aspect with a view to simplifying them. 4. That similarly, before the Committee six major national Political Parties submitted that, 5.4(iv) India is a democratic republic. So everyone has the right to be part of the political process. Clause 3 (1) (f), whereby the organization of political nature is prohibited inconsistent from with accepting the foreign contribution by as the specified by the Central Government, seems to be rights guaranteed Constitution of India. Therefore, Clauses 3(1) (f), 5(1) and 54 (2) (b) be deleted. 5. That NGOs who appeared before the Committee pointed out that the provisions of the Bill of 2006 were not in conformity with the National Policy on Voluntary Sector, 2007 formulated by the Planning Commission. This has been referred to in para 6 of the report of the Committee. 6. That, the Committee on 21.10.2008 submitted its 134th Report on the Foreign Contribution (Regulation) Bill, 2006 to the Rajya Sabha and Lok Sabha. A true copy of the said 134th report of the Committee on Home Affairs is hereto marked and annexed as ANNEXURE P3.

7. That the Committee heard representatives of the Planning Commission on the compatibility of the Bill of 2006 vis--vis the National Policy on Voluntary Sector (a policy document of the Voluntary Sector Cell, Planning Commission, Government of India). The National Policy on Voluntary Sector, 2007 was considered and approved by the Cabinet on 17.05.2007 and it was notified in the Gazette of India on 31.07.2007. The National Policy on Voluntary Sector, 2007 states that, Para 4.1: The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability. Para 4.7: International funding of voluntary organizations plays a small, but significant part in supporting such organizations and their work in the country. An organization seeking foreign funding must be registered under the Foreign Contribution (Regulation) Act. This law prescribes stringent screening norms that often restrict the ability of VOs to avail foreign funds. When approved, there are problems like funds must be held in a single bank account, thus presenting enormous difficulties to VOs working at different locations. The Government will review the FCRA and simplify its provisions that apply to VOs, from time to time, in consultation with the joint consultative group to be set up by the concerned Ministry (as suggested under para 5.4). A true copy of the National Policy on Voluntary Sector, 2007 is hereto marked and annexed as ANNEXURE P4.

8. That the Foreign Contribution (Regulation) Bill, 2010 [Bill No. CXII-C of 2006] (hereafter Bill of 2010) is passed by Rajya Sabha on 19.08.2010. In the Rajya Sabha, the following important debates took place:7.1 Shri M. Rama Jois (Rajya Sabha member from Karnataka) whose book Legal and Constitutional History of India is prescribed by the Bar Council of India for the law degree, made the following comments,
Now, I will give an example. What about trade unions? There are a number of trade unions which are also registered organisations and about most of the trade unions we know to which political parties they are affiliated or belong to. If this sweeping power is given to the Central Government, the Central Government may say that a trade union is affiliated to a particular party, therefore, prevent them from getting foreign contribution. Therefore, my objection is that this 'political nature' is a very dangerous, wide and very vague expressions. The Supreme Court has held if a provision is capable of both use and abuse, then, it is violative of article 14 of the Constitution. Right from 1958 the Supreme Court in Ramkrishan Dalmia's case has said that any provision made by the legislation cannot be such that it is both capable of use as well as abuse. This is what has happened. Therefore, which is an organisation of a political nature is left to the sweet will of the Central Government. Section 5 provides that before making an order under sub-section (I), the Central Government shall give the organisation in respect of whom the order is proposed to be made, a notice in writing informing it of the ground or grounds, on which it is proposed to be specified as an organisation of political nature. So, the Government can issue a notice. It can say, 'your organisation is considered, in our opinion, an organisation of political nature, and therefore, we want to prohibit you from getting foreign contribution.' What do you say, Sir? Then, there is another interesting provision in Clause 5(2), which says, 'provided the Central Government may by rule specify' etc. Sir, 5(3) says that the organisation to whom a notice has been served under sub-section (2), may, within a period of thirty days from the date of the notice, make a representation to the Central Government giving reasons for not specifying such organisation as an organisation under sub-section (I).

The meaning is that the Central Government will issue notice stating reason to declare an association as of a political nature. Then they have given the right of representation. Then what is going to be done with that representation you see, provided that the Central Government may entertain. So, the time limit is there, more time is also given. Sir, subclause 4 is most important. It says that the Central Government, may, if it considers it appropriate, forward the representation referred to in sub-section (3) to any authority to report on such representation. What is that authority? First of all, it is left to the decision of the Central Government to refer or not to refer. Now, even if it decides to refer the representation given by a particular party or association, then, it can refer to some authority. Which is that authority, it is not specified. Then the Central Government may, after considering the representation and the report of the authority, etc. So, the Central Government may send it to some authority and that whatever opinion is given by that authority is taken into consideration and the Central Government will take a decision. My submission is you are doing it without specifying the authority, the status of the authority to which the representation is to be referred. My first objection is to power to declare an association of a political nature is itself dangerous. It is totally going to destroy the Fundamental Rights under article 19 (1) (C) of the Constitution. Even trade union activities can be barred from getting foreign contribution by exercise of this power. As far as this authority is concerned, the word authority is also extremely vague. It can be some authority of the choice of the Government. They can take the report of that authority and pass the final order.(emphasis supplied)

7.2

In response to the queries raised by members including Shri M. Rama Jois and others, Shri P. Chidambaram, Home Minister said that,
Sir, many of the things which the hon. Members said have to be dealt with in the rules. They may appear vague, but any law, Mr. Rama Jois knows, if you read it without the rules will appeal to be vague. But, many of the things have to be provided for in the rules. Wherever it is necessary, wherever it becomes excessive delegation, we have provided it here. But most of the things have to be done in the rules and guidelines and that is why I

think any law which is drafted will appear to vest a large amount of discretion. But the rule making power is intended to control that discretion or power. Many of these will indeed be dealt with under the rules. Now, Mr. Rama Jois mentioned clause 5. Clause 5 is already there in Section 5 of the present Act. You mentioned Clause 9. Clause 9 is already Section 10 in the present Act. These are not new provisions. These are the provisions which have been repeated because these are wholesome provisions that have stood the test of law. 'Political nature', in fact, we have said that the present law is rather vague. The new law says on political nature we will lay down guidelines, we will frame rules, we will issue a show cause notice, and we will give the reasons why an organisation is being called an organisation of a political nature. We will get their reply, and then we will pass an order either of placing them in the category of organizations of a political nature, and publish that notification. If it is abused, if it is unreasonable, they know how to challenge it in the court of law. In fact, we are making it more transparent, we are making it more rule based and more reason based.(emphasis supplied)

9. The Parliament passed the Bill of 2010 enacting the Foreign Contribution (Regulation) Act, 2010 [42 of 2010] (hereafter referred to as Act of 2010) by which foreign contribution and foreign hospitality has been regulated. The Act of 2010 received the assent of the President of India on 26.09.2010 and was notified in the Gazette of India on 27.09.2010. The Act of 2010 comes into force from 01.05.2011 vide Central Government notification repealing the earlier act, viz., the Foreign Contribution (Regulation) Act, 1976. The objective of the Act of 2010 reads as follows: An Act to consolidate the law to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilization of foreign contribution or foreign hospitality for any

activities detrimental to the national interest and for matters connected therewith or incidental thereto. 10. That under Section 3 of the Act of 2010, it is, inter-alia,

provided that no foreign contribution shall be accepted by any; candidate for election, journalists, judge, Government servant or employee, member of any Legislature, political party, organisation of political nature, association or company involved in audio news or audio visual news. Under Section 5 of the Act of 2010, the procedure for notifying an organisation of a political nature has been provided. Section 5 of the Act of 2010 being relevant for the purpose of this Writ Petition is quoted below:
5. Procedure to notify an organisation of a political nature. 5.1 The Central Government may, having regard to the activities of the organisation or the ideology propagated by the organisation or the programme of the organisation or the association of the organisations with the activities of any political party, by an order published in the Official Gazette, specify such organisation as an organisation of a political nature not being a political party, referred to in clause (f) of sub-section (1) of section 3: Provided that the Central Government may, by rules made by it, frame the guidelines specifying the ground or grounds on which an organisation shall be specified as an organisation of a political nature. 5.2 Before making an order under sub-section (1), the Central Government shall give the organisation in respect of whom the order is proposed to be made, a notice in writing informing it of the ground or grounds, on which it is proposed to be specified as an organisation of political nature under that sub-section: 5.3 The organisation to whom a notice has been served under sub-section (2), may, within a period of thirty days from the

date of the notice, make a representation to the Central Government giving reasons for not specifying such organisation as an organisation under sub-section (1): Provided that the Central Government may entertain the representation after the expiry of the said period of thirty days, if it is satisfied that the organisation was prevented 5.4 by sufficient cause from making the representation within thirty days. The Central Government may, if it considers it appropriate, forward the representation referred to in sub-section (3) to any authority to report on such representation. 5.5 The Central Government may, after considering the representation and the report of the authority referred to in sub-section (4), specify such organisation as an organisation of a political nature not being a political party and make an order under sub-section (1) accordingly. 5.6 Every order under sub-section (1) shall be made within a period of one hundred and twenty days from the date of issue of notice under sub-section (2): Provided that in case no order is made within the said period of one hundred and twenty days, the Central Government shall, after recording the reasons therefor, make an order under sub-section (1) within a period of sixty days from the expiry of the said period of one hundred and twenty days. (emphasis supplied)

A true and correct Gazette copy of the Foreign Contribution (Regulation) Act, 2010 is hereto marked and annexed as ANNEXURE P5. 11. According to the said Section 5, the Central Government may by an order published in the official gazette declare organisation of a political nature, not being a political party" means such organisation as the Central Government may, having regard to the activities of the organisation or the

ideology propagated by the organisation or the programme of the organisation or the association of the organisation with the activities of any political party, by an order published in the Official Gazette, specified in this behalf. This part of Section 5 of the Act of 2010 is amenable to abuse because on the basis of activities, ideology, association or programme of the organisation, which expressions have not been defined or explained, an organisation can be declared to be that of political nature. The guidelines framed under the rules also do not explain these expressions. 12. That under Section 48 of the Act of 2010, the Central Government published in the Gazette of India the Foreign Contribution (Regulation) Rules, 2011 (hereafter referred to as Rules of 2011). The said Rules of 2011 came into force on the same day as the Act of 2010 i.e. on 01.05.2011. Under Rule 3, guidelines have been provided for declaration of an organization to be of a political nature though it is not a political party. The said Rule 3 is quoted here for ready reference:
3. Guidelines for declaration of an organization to be of a political nature, not being a political party.- The central Government may specify any organization as organization of political nature on one or more of the following grounds: (i) (ii) (iii) (iv) organization having avowed political objectives in its Memorandum of Association or bylaws: any Trade Union whose objectives include activities for promoting political goals: any voluntary action group with objectives of a political nature or which participates in political activities; front or mass organizations like Students Unions, Workers Unions, Youth Forums and Womens wing of a political party;

(v)

organization of farmers, workers, students, youth based on caste, community, religion, language or otherwise, which is not directly aligned to any political party, but whose objectives, as stated in the Memorandum of Association or activities gathered through other material evidence, include steps towards advancement of political interests of such groups;

(vi)

any organization, by whatever name called, which habitually engages itself in or employs common methods of political action like bandh or hartal, rasta roko, rail roko or jail bharo in support of public causes.(emphasis supplied)

true

and

correct

copy

of

the

Foreign

Contribution

(Regulation) Rules 2011 is hereto marked and annexed as ANNEXURE P6. 6. That the petitioner is challenging constitutional validity of Section 5(1) & 5(4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3(i), 3(v) & 3(vi) of Foreign Contribution (Regulation) Rules, 2011 and has not filed any other writ Petition challenging the same before this Honble Court or any other Court. GROUNDS: 1. That the present Writ Petition has been filed on the following, among other, grounds. 1.1 Because under Section 5(1) of Act of 2010, the Central Government has been given powers to declare an organization to be of political nature and to publish the order regarding such organization in the Official Gazette having regard to the activities of the organization, its ideology, its programs and its associations. The Section,

however, does not provide for the guidelines on the basis of which the said declaration could be made. The expressions ideology, activities, programme and association of the organisation have not been explained or defined anywhere in the Act of 2010 or the Rules of 2011. The Petitioner submits that in absence of any precise definitions of these expressions they are amenable to abuse resulting in arbitrary exercise of powers and are therefore violative of Article 14 of the Constitution. 1.2 Because under Section 5(4) of the Act of 2010, the term authority has been mentioned to which representation may be forwarded. The authority has not been defined anywhere. It is important that the authority should be an independent authority so that it can give an independent and unbiased report to the Central Government for its consideration under Section 5(5) of the Act of 2010. Without specifying the authority and its functions and parameters the whole machinery provided under Section 5 of the Act of 2010 becomes unworkable. As a result, the decision under Section 5 of the Act of 2010 becomes arbitrary affecting the rights of the organisations receiving foreign contribution. 1.3 Because the guidelines have been provided only under the Rules of 2011, in particular, vide Rule 3. It is submitted that the guidelines in Rule 3 are extremely wide, without any checks and gives arbitrary discretion, which render the said Rule being subjected to misuse and abuse. These Rules suffer both from unreasonableness, arbitrariness as well as for not creating a discernible classification between the political activities and other social or public activities. The Rules seek to interfere with the activities of the

organization in important areas of national life which are impermissible under this Constitution. The Rules 3(i), 3(v) & 3(vi) are therefore contrary to the object of the Act of 2010 as well as ultra-vires Articles 14, 19(i)(a), 19(1)(c) & 21 of the Constitution. 1.4 Because under Rule 3(i) of Rules of 2011, the Central Government may declare an organization to be of political nature in case the organization, in its memorandum of association or byelaws, has avowed political objective. The Rule nowhere defines what is meant by political objective. In a democracy governed by the Rule of Law and having a written Constitution, it is permissible that an organization or an individual protests or insists on the government keeping up its political objective consistent with the Constitution and Directive Principles. The term political objective includes the governance as well as policies of the Government. The said provision is thus totally unguided, vast and confers arbitrary and unreasonable powers to the Central Government and therefore, violative of the Article 14 of the Constitution. 1.5 Because under Rule 3(v) of the Rules of 2011, an organization of farmers, workers, students, youth based on caste, community, religion, language or otherwise which is not directly aligned to any (a) (b) Political party, can be categorized as a political organization if: Its objective include steps towards advancement of political interest of such groups; or Activities gathered through material evidence include steps towards advancement of political interest of such group. (Emphases supplied)

It is clear from the above for e.g. an organization of farmers indulges in an activity for the purpose of empowering itself for realization of its human rights/ Fundamental Rights, which may include political empowerment as well, it may be put under the category of organization of a political nature. The Act of 2010 or the Rules of 2011 do not define what is the meaning and scope of the expression political interest. Under the International Convenant on Civil and Political Rights, 1967 (hereafter referred to as ICCPR) of which India is a signatory, treats the civil and political rights as part of human rights. Under the provisions of the Protection of Human Rights Act, 1993 (hereafter referred to as Act of 1993). Human Rights have been defined under Section 2 (d), which means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants. International Covenants is also defined under Section 2(f) which mean covenant on Civil and Political Rights (ICCPR) & International Covenants on Economic Social and Cultural Rights (ICESCR). Therefore, what has been provided as political right in the ICCPR has been taken to be part of Human Rights. The aim and object of the Act of 1993 is to promote, protect and implement the civil and political rights of an individual/organization. It is, therefore, not understood on what basis for e.g. the farmers organization will be termed as political organization to deny foreign contribution. The denial of foreign contribution will, in fact, result in infringement of activities of the organization which are a necessary and inalienable part of democracy and Rule of Law. Such an action will not be consistent with the values of a Sovereign democratic republic which recognizes the right of protest. The said provision therefore is violative of not only Article 14 but also 19(1)(a) & 19(1)(c) of the Constitution. The power which has been given in the Rules of

2011, therefore, is un-canalized, arbitrary and does not make a difference between a political activity and advancement of political rights of an organization. It is, therefore, violative of Article 14 of the Constitution. 1.6 Because Rule 3(vi) of the Rules of 2011, is also

unconstitutional for the reason that if an organization indulges in bandh, hartal, rasta roko, rail roko, or jail bharo, which actions are in support of public causes, it will be termed as political action and such organization will be declared as a political organization. In a democracy, some of these actions are accepted methods of expressing the public grievances. They are the only tools in the hands of people to show their disagreement or dissatisfaction with the functioning of the Government. The said provision also suffers from the vice of arbitrariness and unreasonableness because by using these arbitrary guidelines any organization which has indulged in bandh, hartal jail bharo etc. will be termed as a political organization and will be denied foreign contribution. By this action of the Central Government, the right of a Citizen/Organization of its democratic right of protest will be seriously affected. The said provision, therefore, is violative of Articles 14 and 19(1)(a) of the Constitution. 1.7 Because the rights conferred under the ICCPR, among other covenants, have been accepted as a part of municipal law by the Supreme Court as they enhance the content of Article 21 of the Constitution. [vide: PUCL Vs UOI and Ors 1997 (3) SCC 433 and Kapila Hingorani Vs. State of Bihar 2003 (6) SCC 1]. Under the Protection of Human Rights Act, 1993 the provisions of ICCPR have, in fact, been treated as part of Article 21 of the Constitution. By denying the political advancement or political expression, an organizations human rights which are part of

Article 21, have been curtailed. Similarly, by categorizing certain actions as being political for the purpose of denying them certain benefits under foreign contribution, in fact, really amounts to suppression of their human rights as well as freedom of expression under Article 19(1)(a) of the Constitution. These rules are therefore, unconstitutional. 1.8 Because it has been held in Himmat Lal K Shah Vs Commissioner of Police Ahmedabad [(1973) 1 SCC 227] that, Para : It seems to us that it follows from the above discussion that in India a citizen had, before the Constitution, a right to hold meetings on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order. Para : If the right to hold public meetings flows from

Art. 19 (1) (b and Art. 19 (1) (d) it is obvious that the State cannot impose unreasonable restrictions. Para : Public meeting in open spaces and public streets

forms part of the tradition of our national life. In the pre- Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. Further, it has been held in Rohtas Industries Ltd Vs Rohtas Industrial Staff Union [(1976) 2 SCC 82] Para :Our constitution guarantees the right to form for the redressal of grievances. Our associations, not for gregarious pleasure, but to fight effectively constitution is sensitive to workers rights. English

history, political theory and life style being different from Indian conditions where the Father of the Nation organised boycotts and mass satyagrahas we cannot incorporate English conditions without any adaptation into Indian Law. 1.9 Because a detailed discussion had taken place on the Foreign Contribution (Regulation) Bill, 2006 before the Committee where several eminent persons, national political parties, NGOs, Planning Commission etc. had expressed their views and reservations against several provisions in the Bill. The Planning Commission had also expressed its view in view of its National Policy on Voluntary Sector, 2007. In the said policy the contributions resources made from by the Voluntary and Sector to was share considered and they were allowed to mobilize necessary financial India abroad responsibility with the Government. None of these suggestions or contributions were incorporated in the Act of 2010 or the Rules of 2011. 1.10 Because there was a good debate in the Rajya Sabha on several provisions of the Act of 2010. The justifications which were given by the Government in order to sustain the validity of the provisions themselves show that serious lacunae existed in the legal provisions, which in submission of the Petitioner makes them vulnerable to challenge. The explanation which was given in the Rajya Sabha that the vagueness which exist in the provisions will be explained in the rules, has not been fulfilled as the Rules of 2011 are as vague as the main Act of 2010. 1.11 Because there is vast difference between the preamble of the Foreign Contribution (Regulation) Act, 1976 (Act of 1976) and

the preamble of the Act of 2010. That itself demonstrates that through the Act of 2010 the constitutional protections have been diluted and the present Act of 2010 attempts to achieve that which is not permissible under the Constitution.

Preamble of Act of 1976 An Act to regulate the acceptance and utilization of foreign contribution or foreign hospitality by certain persons or associations, with a view to ensuring that parliamentary institutions, political associations and academic and other voluntary organisations as well as individuals working in the important areas of national life may function in a manner consistent with the values of a sovereign democratic republic, and for matters connected therewith or incidental thereto.

Preamble of Act of 2010 An Act to consolidate the law to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto.

1.12 Because

the

consequences

of

withdrawal

of

foreign

contribution registration on an NGO/civil society is very serious. The civil and evil consequences of cancellation of foreign contribution registration could be that not only persons who are employed with the NGO or civil society will lose their employment but it will have an adverse effect on the activities done by the organisation namely, those working for upliftment of poor, farmers, fighting against discrimination of women, for protection of environment and for establishing the democratic rights of the people etc.

PRAYER 2. The to: (1) Issue a writ of mandamus/certiorari or a writ or declaration of like nature to declare Section 5(1) & 5(4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3(i), 3(v) & 3(vi) of the Foreign Contribution (Regulation) Rules, 2011 as being violative of Articles 14, 19(1)(a), 19(1)(c) and 21 of the Constitution. (2) Pass such other order(s) which this Honble Court may deem fit and proper in the facts and circumstances of the case. FOR THIS ACT OF KINDNESS THE PETITIONER/APPLICANT HEREIN AS IN DUTY BOUND SHALL EVER PRAY. petitioner, therefore, prays that in the facts and

circumstances of the present case this Honble Court may be

Drawn and Filed by

SETTLED BY: SANJAY PARIKH, ADVOCATE

[AAGNEY SAIL] ADVOCATE FOR THE PETITIONER

#102, New Lawyers Chambers, M.C.Setalvad Block, Supreme Court of India, Bhagwan Das Road, New Delhi - 110001

IN THE HIGH COURT OF DELHI AT NEW DELHI (CIVIL WRIT JURISDICTION) Civil W.P No. _____ of 2011 (PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:Indian Social Action Forum (INSAF) VERSUS Union of India AFFIDAVIT I Chitranjan Singh, S/o late Shri Bahadur Singh, aged about 50 years, R/o A-124/6, Katwaria Sarai, New Delhi 110016 do hereby solemnly affirm and state as under: 1. I say that I am the General Secretary of the Petitioner in the above Writ Petition. I say that I am aware of the facts and circumstances of the case and I am competent to swear this Affidavit. 2. 3. I say that the contents of the Writ Petition are true and correct to my knowledge and information. I say that the annexures are true and correct copies of their respective originals. DEPONENT VERIFICATION: Verified on this 4th day of August, 2011 that the contents of paras 1 to 3 of the above affidavit are true and correct and nothing material has been concealed therefrom. Verified at New Delhi on this the 4th day of August, 2011. DEPONENT RESPONDENT PETITIONER

IN THE HIGH COURT OF DELHI AT NEW DELHI (CIVIL WRIT JURISDICTION) Civil W.P No. 5793 of 2011 (PUBLIC INTEREST LITIGATION) IN THE MATTER OF:Indian Social Action Forum (INSAF) VERSUS Union of India ..RESPONDENT WRITTEN SUBMISSIONS BY SANJAY PARIKH, ADVOCATE ON BEHALF OF THE PETITIONER PETITIONER

1.1

The Foreign Contribution (Regulation) Act, 1976 (hereafter referred to as 1976 Act) provided for foreign contribution to be received by an organisation of political nature not being a political party for which prior permission of the Central Government was required. The preamble - of the 1976 Act also provided foreign contribution for associations,

organization and individuals working in the important areas of national life so that they may function in a manner consistent with the values of a sovereign democratic republic, and for matters connected therewith or incidental thereto.

(Emphasis supplied)

1.2

However, the Foreign Contribution (Regulation) Act, 2010 (hereafter referred to as 2010 Act) prohibits completely foreign contribution to an organisation of political nature not being a political party vide Section 3(f) of the 2010 Act. Even the preamble of the 2010 Act has dropped the preamble of

1976 Act, of providing foreign contribution to organisations working consistent with the values of sovereign, democratic and republic. The preamble is in negative form and denies foreign contribution for any activities detrimental to the national interest and for matters connected therewith or incidental thereto. (Emphasis supplied).

1.3

Non-governmental organisations (NGOs) function in various fields like environment, human rights, gender discrimination as well as issues concerning children, farmers, students etc. In all these activities empowerment and creation of awareness about rights is involved. The process of empowerment of people ultimately leads to realization of their human and constitutional rights, namely, social, political, economic, social and cultural rights, among others.

1.4

Organisations working against discrimination of women and for their empowerment may will lead to participation of these women in local self-governance, gram panchayat and

advocacy as that may be thought as one of the ways to end discrimination. Similarly, an organisation working for the farmers rights and against mindless acquisition of their lands, may oppose the government policy on acquisition. This may be taken as a political action against the Government. An organisation working for the workers rights may oppose the liberalization policy of the government. This may be taken as a view against the national interest. NGOs working for the environment may advocate against the inappropriate

industrialization policy of the government leading to the destruction of the environmental wealth. This may be taken as an activity against development and, therefore, branded as a political action against the political setup. In all these civil society struggles, the organisations will be invariables

opposing the policy of the government or its actions which in turn is influenced by the political regime in power. NGOs protesting peacefully in support of their cause may suffer arrest and put in jails by the government branding their actions as being political.

1.5

The process of empowerment of people ultimately leads to realization of their constitutional and human rights. Political empowerment of people is necessary so that they realize their political duties which ultimately sub serves the purpose of vibrant democracy. This is quite different from politics which is aligned with the political parties and their ideologies. One can be political but still not aligned to any political party. He may convey ideas on how the State should be run on certain political principles and what is most suitable within the parameters of the Constitution, for example, a

person/organisation following Gandhi ideology may talk of gram swaraj and that the present politics is not permitting the achievement of the Constitutional goals as envisioned by the Father of the Nation. Can it be said that the activities of this organisation/persons are of political nature?

1.6

As a matter of fact, the Planning Commission drafted National Policy on the Voluntary Sector, 2007 which interalia, provided for encouraging, enabling and empowering the voluntary sector so that it can contribute to the social, cultural and economic advancement of the people of India. The said document is enclosed at pages 90 to 102 of the writ petition. This document, inter-alia, says : 1.2 The voluntary sector has contributed significantly to finding innovative solutions to poverty, deprivation, discrimination and exclusion, through means such as awareness raising, social mobilization, service delivery, training, research, and advocacy. The voluntary sector has been serving as an effective non-political link between the people and the Government. This policy recognizes the important role that the voluntary sector has to play in various areas and affirms the growing need for collaboration with the voluntary sector by Government, as well as by the private sector, at the local, provincial and national levels. 3.1.2 To enable VOs to legitimately mobilize necessary financial resources from India and abroad; 4.1 The independence of VOs allows them to explore alternative paradigms of development to challenge social, economic and political forces that may work against public interest and to find new ways to combat poverty, deprivation and other social problems. It is therefore crucial that all laws, policies, rules and regulations relating to VOs categorically safeguard their autonomy, while simultaneously ensuring their accountability. ( supplied) Emphases

1.7

In view of the above, the definition of political nature, political objective, political ideology are different from the normal political actions of political parties. NGOs play a complementary/supplementary part in doing what the State should ideally do. The only laudable objective of both is to

empower people as against poverty, illiteracy, homelessness, discrimination etc. and in the process, if need be, to counter Government policies, laws, political decisions etc.

1.8

The consequences of withdrawal of foreign contribution registration on an NGO/civil society is very serious. The civil and evil consequences of cancellation of foreign contribution registration could be that not only persons who are employed with the NGO or civil society will lose their employment but it will have an adverse effect on the activities done by the organisation namely, those working for upliftment of poor, farmers, fighting against discrimination of women, for

protection of environment and for establishing the democratic rights of the people etc. 1.9 The impugned provisions give the Central Government a blanket power to pick and choose from NGOs/CSOs anyone whom they dont want to function due to their strong opposition, which they demonstrate through constitutionally permissible methods. This is where the entire problem lies. The Governments power to pick and choose, discriminate, act arbitrarily by abusing powers given under the Act, is quite obvious. 2. Why Section 5 of the 2010 Act is unconstitutional? Section 5 of the 2010 Act states that,
5. Procedure to notify an organisation of a political nature.

(1)

The Central Government may, having regard to the activities of the organisation or the ideology propagated by the organisation or the programme of the organisation or the association of the organisations with the activities of any political

party, by an order published in the Official Gazette, specify such organisation as an organisation of a political nature not being a political party, referred to in clause (f) of sub-section (1) of section 3: Provided that the Central Government may, by rules made by it, frame the guidelines specifying the ground or grounds on which an organisation shall be specified as an organisation of a political nature.

(2)

Before making an order under sub-section (1), the Central Government shall give the organisation in respect of whom the order is proposed to be made, a notice in writing informing it of the ground or grounds, on which it is proposed to be specified as an organisation of political nature under that sub-section:

(3)

The organisation to whom a notice has been served under sub-section (2), may, within a period of thirty days from the date of the notice, make a representation to the Central Government giving reasons for not specifying such organisation as an organisation under sub-section (1): Provided that the Central Government may entertain the representation after the expiry of the said period of thirty days, if it is satisfied that the organisation was prevented by sufficient cause from making the representation within thirty days.

(4)

The Central Government may, if it considers it appropriate, forward the representation referred to in sub-section (3) to any authority to report on such representation.

(5)

The Central Government may, after considering the representation and the report of the authority referred to in sub-section (4), specify such organisation as an organisation of a political nature not being a political party and make an order under sub-section (1) accordingly.

(6)

Every order under sub-section (1) shall be made within a period of one hundred and twenty days from the date of issue of notice under sub-section (2): Provided that in case no order is made within the said period of one hundred and twenty days, the Central Government shall, after recording the reasons therefore, make an order under sub-section (1) within a period of sixty days from the

expiry of the said period of one hundred and twenty days. (Emphases supplied)

2.1

The petitioner submits that the terms used in Section 5 (1), namely, activities, ideology and programme are very vast; they have not been defined either in the Act or in the Rules. Such vague expressions are therefore, amenable to abuse resulting in arbitrary and illegal action. Though Proviso to Section 5 (1) says that by framing guidelines and specifying ground/grounds, an organisation shall be specified as an organisation of a political nature, the Rules do not actually lay-down any guidelines. The ground / grounds provided in the Rules are exhaustive in nature but they do not cover all the situations envisaged by the terms, namely, activities, ideology and programme. In certain areas, the Rules travel beyond the main Section 5. It is to be further noted that the term authority as mentioned in Section 5 (4) has not been defined anywhere in the Act or Rules. The discretion has been given to the Central Government to either forward the representation to such an authority or not. From Section 5 (5) it is further clear that the Central Government may consider either the representation alone or representation along with the report of the Authority. The discretion given to the Central Government under Section 5 (4) is without any guidelines; there is no reason or rationale as to the situations where the representation will be forwarded to an authority and where it will not. The nature and character of the authority has not been defined. It is not clear whether the authority will be independent of the Central Government. Therefore, Section 5 (4) as far as exercise of discretion by the Central Government is concerned and as far as the uncertainty about the authority is concerned, it is violative of Article 14 of the Constitution.

2.2

The petitioner relies on the debates in Parliament, as that is one of the methods of ascertaining intention of the Parliament for the purpose of interpretation and understanding of the legal provisions.

The Foreign Contribution (Regulation) Bill, 2010 [Bill No. CXIIC of 2006] (hereafter Bill of 2010) is passed by Rajya Sabha on 19.08.2010. In the Rajya Sabha, the following important debates took place:Shri M. Rama Jois (Rajya Sabha member from Karnataka) whose book Legal and Constitutional History of India is prescribed by the Bar Council of India for the law degree, made the following comments : Now, I will give an example. What about trade unions? There are a number of trade unions which are also registered organisations and about most of the trade unions we know to which political parties they are affiliated or belong to. If this sweeping power is given to the Central Government, the Central Government may say that a trade union is affiliated to a particular party, therefore, prevent them from getting foreign contribution. Therefore, my objection is that this 'political nature' is a very dangerous, wide and very vague expressions. The Supreme Court has held if a provision is capable of both use and abuse, then, it is violative of article 14 of the Constitution. Right from 1958 the Supreme Court in Ramkrishan Dalmia's case has said that any provision made by the legislation cannot be such that it is both capable of use as well as abuse. This is what has happened. Therefore, which is an organisation of a political nature is left to the sweet will of the Central Government. Section 5 provides that before making an order under sub-section (I), the Central Government shall give the organisation in respect of whom the order is proposed to be made, a notice in writing informing it of the ground or grounds, on which it is proposed to be specified as an organisation of political nature. So, the Government can issue a notice. It can say, 'your organisation is considered, in our opinion, an organisation of political nature, and therefore, we want to prohibit you from getting foreign contribution.' What do you say, Sir? Then, there is another interesting provision in Clause 5(2), which says, 'provided the Central Government may by rule specify' etc.

Sir, 5(3) says that the organisation to whom a notice has been served under sub-section (2), may, within a period of thirty days from the date of the notice, make a representation to the Central Government giving reasons for not specifying such organisation as an organisation under sub-section (I). The meaning is that the Central Government will issue notice stating reason to declare an association as of a political nature. Then they have given the right of representation. Then what is going to be done with that representation you see, provided that the Central Government may entertain. So, the time limit is there, more time is also given. Sir, subclause 4 is most important. It says that the Central Government, may, if it considers it appropriate, forward the representation referred to in subsection (3) to any authority to report on such representation. What is that authority? First of all, it is left to the decision of the Central Government to refer or not to refer. Now, even if it decides to refer the representation given by a particular party or association, then, it can refer to some authority. Which is that authority, it is not specified. Then the Central Government may, after considering the representation and the report of the authority, etc. So, the Central Government may send it to some authority and that whatever opinion is given by that authority is taken into consideration and the Central Government will take a decision. My submission is you are doing it without specifying the authority, the status of the authority to which the representation is to be referred. My first objection is to power to declare an association of a political nature is itself dangerous. It is totally going to destroy the Fundamental Rights under article 19 (1) (C) of the Constitution. Even trade union activities can be barred from getting foreign contribution by exercise of this power. As far as this authority is concerned, the word authority is also extremely vague. It can be some authority of the choice of the Government. They can take the report of that authority and pass the final order.(emphasis supplied)

In response to the queries raised by members including Shri M. Rama Jois and others, Shri P. Chidambaram, Home Minister said that,
Sir, many of the things which the hon. Members said have to be dealt with in the rules. They may appear vague, but any law, Mr. Rama Jois knows, if you read it without the rules will appeal to be vague. But, many of the things have to be provided for in the rules. Wherever it is necessary, wherever it becomes excessive delegation, we have provided it here. But most of the things have to be done in the rules and guidelines and that is why I think any law which is drafted will appear to vest a large amount of discretion. But the rule making power is intended to control that discretion or power. Many of these will indeed be dealt with under the rules. Now, Mr. Rama Jois mentioned clause 5. Clause 5 is already there in Section 5 of the present Act. You mentioned Clause 9. Clause 9 is already Section 10 in the present Act. These are not new provisions. These are the provisions which have been repeated because these are wholesome provisions that have stood the test of law. 'Political nature', in fact, we have said that the present law is rather vague. The new law says on political nature we will lay down guidelines, we will frame rules, we will issue a show cause notice, and we will give the reasons why an organisation is being called an organisation of a political nature. We will get their reply, and then we will pass an order either of placing them in the category of organizations of a political nature, and publish that notification. If it is abused, if it is unreasonable, they know how to challenge it in the court of law. In fact, we are making it more transparent, we are making it more rule based and more reason based. (emphases supplied)

3.

The Foreign Contribution (Regulation) Rules, 2011 (hereafter 2011 Rules) have provided for declaration of an organization to be of a political nature though it is not a political party. Rule 3 states that:

3.

Guidelines for declaration of an organization to be of a political nature, not being a political party.- The central Government may specify any organization as organization of political nature on one or more of the following grounds: (i) (ii) (iii) Organization having avowed political objectives in its Memorandum of Association or bylaws: any Trade Union whose objectives include activities for promoting political goals: any voluntary action group with objectives of a political activities; (iv) front or mass organizations like Students Unions, Workers Unions, Youth Forums and Womens wing of a political party; (v) organization of farmers, workers, students, youth based on caste, community, religion, language or otherwise, which is not directly aligned to any political party, through groups; but whose objectives, as stated include in the steps Memorandum of Association or activities gathered other material evidence, towards advancement of political interests of such nature or which participates in political

(vi)

any organization, by whatever name called, which habitually engages itself in or employs common methods of political action like bandh or hartal, rasta roko, rail roko or jail bharo in support of public causes.(emphases supplied)

4.

The petitioner is challenging Rule 3 (i), (v) & (vi) of the said Rules as being unconstitutional and ultra vires the Act itself. The challenges to Rule 3 are based on the following reasoning:

4.1

These guidelines/grounds are extremely wide, without any checks and balances and give arbitrary and wide discretion, which render the said Rule being subjected to misuse and abuse. These guidelines in the Rules suffer both from unreasonableness, arbitrariness as well as for not creating a discernible classification between the political activities and other social or public activities. They seek to interfere with the

activities of the organisation in important areas of national life which is impermissible under this Constitution. The Rules 3(i), 3(v) & 3 (vi) are therefore, contrary to the object of the Act of 2010 as well as ultra-vires Articles 14, 19(1)(a), 19(1)(c) and 21 of the Constitution. Re : RULE 3 (i) 4.2 Under Rule 3(i) of Rules of 2011, the Central Government may declare on organisation to be of a political nature in case the organization, in its memorandum of association or byelaws, has avowed political objective. The Rule nowhere defines what is meant by political objective. In a democracy governed by the Rule of Law and having a written Constitution, it is permissible that an organisation or an individual protests or insists on the government keeping up its political objective consistent with the Constitution and Directive Principles. The term political objective includes the governance as well as policies of the Government. Therefore, if in the memorandum or byelaws of an organization, the avowed objective is to oppose government policies which violate the Constitution and Directive Principles, it may be accused of having a political objective. The said provision is thus totally unguided, unchecked and confers arbitrary and unreasonable powers on the Central Government and therefore, violative of the Article 14, 19 (1) (a), and 19 (1) (c) of the Constitution. Re: RULE 3(v) 4.3 Under Rule 3(v) of the Rules of 2011, an organization of farmers, workers, students, youth based on caste, community, religion, language or otherwise which is not directly aligned to any Political party, can be categorized as a political if its objective include steps towards organization

advancement of political interest of such groups; or activities gathered through material evidence include steps towards advancement of political interest of such group.

It is thus clear that if an organization of farmers indulges in an activity for the purpose of empowering itself for realization of its human rights/ Fundamental Rights, which may include political empowerment as well, it may be put under the category of organization of a political nature. The Act of 2010 or the Rules of 2011 do not define what is the meaning and scope of the expression political interest. Under the International Covenant on Civil and Political Rights, 1967 (hereafter referred to as ICCPR) of which India is a signatory, the civil and political rights are treated as part of human rights. Under the provisions of the Protection of Human Rights Act, 1993 (hereafter referred to as Act of 1993). Human Rights have been defined under Section 2 (d), which means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants. International Covenants is also defined under Section 2(f) which mean covenant on Civil and Political Rights (ICCPR) & International Covenants on Economic Social and Cultural Rights (ICESCR). Therefore, what has been provided as political right in the ICCPR has been taken to be part of Human Rights. The aim and object of the Act of 1993 is to promote, protect and implement the civil and political rights of an individual/organization. It is, therefore, not understood on what basis for e.g. the farmers organization will be termed as political organization to deny foreign contribution. The denial of foreign contribution will, in fact, result in infringement of activities of the organization which are a necessary and inalienable part of democracy and Rule of Law. Such an action will not be consistent with the values of a Sovereign democratic republic which recognizes the right of protest. The said provision, therefore, is violative of not only Article 14 but also 19(1)(a) & 19(1)(c) of the Constitution. The power which has been given in the Rules of 2011, therefore, is un-canalized, arbitrary and does not make a difference between a political activity and advancement of political rights of an organization.

Re: RULE 3(vi) 4.4 Rule 3(vi) of the Rules of 2011, is also unconstitutional for the reason that if an organization indulges in bandh, hartal, rasta roko, rail roko, or jail bharo, and such organization will be which actions are in as a political support of public causes, it will be termed as political action declared organization. The term habitually is prone to gross misuse and abuse. In a democracy, some of these actions are accepted methods of expressing the public grievances. They are the only tools in the hands of people to show their disagreement or dissatisfaction with the functioning of the Government. The said provision also suffers from the vice of arbitrariness and unreasonableness because by using these arbitrary guidelines any organization which has indulged in bandh, hartal jail bharo etc. will be termed as a political organization and will be denied foreign contribution. By this action of the Central Government, the right of a Citizen/Organization of its democratic right of protest will be seriously affected. The said provision, therefore, is violative of Articles 14, 19(1) (a) and 19(1)(c) of the Constitution.

4.5

The Petitioner relies on the following judgments to point-out that the citizens have a right to protest & express their views subject to restrictions in the constitution. Himmat Lal K Shah Vs Commissioner of Police Ahmedabad [(1973) 1 SCC 227] that, Para 31 : It seems to us that it follows from the above discussion that in India a citizen had, before the Constitution, a right to hold meetings on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order.

Para 35 : If the right to hold public meetings flows from Art. 19 (1) (b and Art. 19 (1) (d) it is obvious that the State cannot impose unreasonable restrictions. Para 70 : Public meeting in open spaces and public

streets forms part of the tradition of our national life. In the pre- Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. Further, it has been held in Rohtas Industries Ltd Vs Rohtas Industrial Staff Union [(1976) 2 SCC 82] Para 20 :Our constitution guarantees the right to form associations, not for gregarious pleasure, but to fight effectively for the redressal of grievances. Our constitution is sensitive to workers rights. English history, political theory and life style being different from Indian conditions where the Father of the Nation organised boycotts and mass satyagrahas we cannot incorporate English conditions without any adaptation into Indian Law. 4.6 The rights conferred under the ICCPR, among other

covenants, have been accepted as a part of municipal law by the Supreme Court as they enhance the content of Article 21 of the Constitution. [vide: PUCL Vs UOI and Ors 1997 (3) SCC 433 and Kapila Hingorani Vs. State of Bihar 2003 (6) SCC 1]. Under the Protection of Human Rights Act, 1993 the provisions of ICCPR have, in fact, been treated as part of Article 21 of the Constitution. By denying the political advancement or political expression, an organizations human rights which are part of Article 21, have been curtailed. Similarly, by categorizing certain actions as being political for the purpose of denying them certain benefits under foreign contribution, in fact, really amounts to suppression of their human rights as well as freedom of expression under Article

19(1)(a) of the Constitution. These rules are therefore, unconstitutional. 5. Sec. 5 gives unfettered discretion which is further enhanced by the guidelines under Rule 3. This unfettered, undefined and vague discretion is violative of Article 14 of the Constitution. Further, in addition, impugned Guidelines provided under Rule 3 are arbitrary, unjust, unreasonable and violative of Article 14 of the Constitution. Art. 19(1) (a) (b) & ( c ) is violated as the impugned provisions travel beyond the reasonable restrictions provided under Art. 19 (2) (3) & (4). (i) State of W. B. vs. Anwar Ali Sarkar : AIR 1952 SC 75 at 86 Para 38 (Mahajan J.) at 90-92 Para 49 and 50 (Mukherjea J.) (ii) Shri Ramkrishna Dalmiya vs. Justice Tendulkar AIR 1958 SC 538 at 548 (Para 12 (iii) (iii) K.T. Moopil Nair vs. State of Kerala AIR 1961 SC 552 at 558 (Para 8) (iv) (v) Maneka Gandhi vs. Union of India 1978 (1) SCC 248. Smt. Damyanti Naranga vs. The Union of India And Ors. 1971 (1) SCC 678 (vi) Kameshwar Prasad and Ors. Vs. State of Bihar and Anr, AIR 1962 SC 1166 at 1170 (Para 13)

FILED ON: 17.8.2011